I concur in the conclusion that the Highway Commission, as such, cannot be held liable in court proceedings for the alleged *Page 80 torts of its members. The rule is of long standing that the King can do no wrong. From that simple statement there grew up the further equally fallacious idea that a state or a nation can do no wrong and hence may not be sued without their consent.
The State of Montana has never given its consent to be sued in court for an alleged tort. The only remedy provided by our laws for such a wrong as against the state is to go before the state board of examiners. Sec. 20 of Art. VII of our constitution makes the board of examiners the tribunal to hear all claims against the state and expressly provides that "no claim against the state, except for salaries and compensation of officers fixed by law, shall be passed upon by the legislative assembly without first having been considered and acted upon by said board."
To carry out the constitutional scheme for having claims against the state determined by the state board of examiners, Sec. 242, R.C., was enacted providing for the presentation of such claims to that board. Sec. 243 fixes the time when the board will examine the claims and requires published notice thereof. Sec. 244 provides for hearing evidence on the claims and making a report to the legislative assembly of facts and recommendations. This plan of deciding claims against the state has not proved adequate so far as the claimant is concerned. Claims are transmitted by the state board of examiners to the legislative assembly or to some legislative committee, without recommendation and without any hearing thereon by the board of examiners. If the legislature pays attention to the constitutional command that it shall pass upon no claim which has not been previously considered and acted upon by the board, it must automatically decline relief and that is what it usually does and the claimant remains remediless.
The state not having given its consent to be sued in court on a claim founded upon the alleged torts of its officers, I agree with the conclusion that the trial court properly sustained the demurrer as to the defendant commission.
I disagree with my associates so far as the question of the individual liability of the members is concerned. I agree that *Page 81 there are many cases supporting the conclusion that the members of the board are not personally liable for nonfeasance. But even for nonfeasance the weight of authority holds there is liability (see note in 40 A.L.R. 36) and Montana is listed along with those cases supporting the majority view. But whatever the rule may be for nonfeasance, nearly all courts hold that there is personal liability for misfeasance of public officers. The difference between nonfeasance and misfeasance is pointed out in Binkley v. Hughes, 168 Tenn. 86, 73 S.W.2d 1111, 1112 where the court said: "Such commissioners are personally liable to a third party where the latter is injured as a result of some act of misfeasance committed by them."
The Supreme Court of Minnesota, in Stevens v. North States Motor, 161 Minn. 345, 201 N.W. 435, 436, 40 A.L.R. 36, after declaring that there is no personal liability on the members of the highway board for nonfeasance, distinguished the prior case of Tholkes v. Decock, 125 Minn. 507, 147 N.W. 648, 52 L.R.A., N.S., 142, by saying:
"The case of Tholkes v. Decock, supra, relied upon by appellant, was a case of misfeasance on the part of the overseer in repairing a culvert in a public highway. It was not a case of nonfeasance like unto the case at bar. There, the overseer undertook to repair the culvert, and while so doing, went beyond his duty in that he left a pitfall in the culvert overnight, an independent tort for which he was personally liable, the same as would any other person, in no way connected with the highway, have been. The leaving of such a mantrap was no part of the overseer's duty. True, it was done while the overseer was in the act of repairing the culvert, but the act of leaving the pitfall open and unprotected overnight was not a part of his official duties. It constituted misfeasance as distinguished from nonfeasance, and therein lies a distinction between that case and the one at bar.
"The act complained of in that case was, not the removal of the culvert, but the leaving of a mantrap in its stead without proper danger warnings." *Page 82
The case of Palmer v. Marceille, 106 Vt. 500, 175 A. 31, 32, states the rule of liability for misfeasance as follows: "The fact that Marceille was a public employee, performing a governmental act, does not exempt him from personal liability for negligent misfeasance. This principle has been repeatedly recognized. In Florio v. Schmolze, 101 N.J.L. 535, 129 A. 470,40 A.L.R. 1353, the defendant, the driver of a fire truck, while going to a fire, negligently collided with the plaintiff's horse and wagon. The court said, 129 A. 470, at page 471: `He (the defendant) must answer for his negligence, though in the performance of a public duty, in the same manner as if he were an individual in private life and had committed a wrong to the injury of another. The servant of the municipality is required to perform his duty in a proper and careful manner, and when he negligently fails to do so, and in the performance of his duty negligently injures another, his official cloak cannot properly be permitted to shield him against answering for his wrongful act to him who has suffered injury thereby.' And again at pages 472, 473 of 129 A.: `We think that a sound public policy requires that public officers and employees shall be held accountable for their negligent acts in the performance of their official duties, to those who suffer injury by reason of their misconduct. Public office or employment should not be made a shield to protect careless public officials from the consequences of their misfeasances in the performance of their public duties.' In Moynihan v. Todd, 188 Mass. 301, 74 N.E. 367, 108 Am. St. Rep. 473, the action was predicated upon the alleged negligent blasting of a rock in the highway, by which the plaintiff was injured, and the evidence tended to support the claim. The defendant was the superintendent of streets and directed the operation. He claimed exemption from liability because of his public employment and the governmental nature of the work. The court said, page 305 of 188 Mass., 74 N.E. 367, 369: `We are of opinion that the principle which underlies the rule that public officers and other agencies of government are not liable for negligence in the performance of public duties goes no *Page 83 further than to relieve them from liability for nonfeasance and for the misfeasances of their servants or agents. For a personal act of misfeasance we are of opinion that a party should be held liable to one injured by it as well when in the performance of a public duty as when otherwise engaged.'" See, also, 40 C.J.S., Highways, sec. 251; 25 Am. Jur. Highways, Sec. 604.
Does the complaint allege an act of misfeasance on the part of the members of the board?
In par. XVI of the second amended complaint, it is alleged: "That at all of the times herein mentioned the aforesaid section of highway had an oiled surface; that at some time prior to April 30, 1939, the exact date being to plaintiff unknown, but being within the knowledge of the defendants, said defendants Lee M. Ford, Walter W. Phillips, John M. Wheeler, D.A. McKinnon, Scott V. Hart, Fred M. Brown, and John Doe covered the oiled surface of said highway with oil to seal the surface of the same and prevent moisture from penetrating the same, although said defendants then and there knew that the application of such oil to the surface of said highway would cause said highway to be exceedingly slippery and dangerous for use by vehicular traffic when made wet by snow or rain so that vehicles proceeding upon the same might slip therefrom and overturn, by reason of the fact that the oil so applied was unsuitable for use as road oil, in that the same was exceedingly slippery when wet."
It was further alleged that, "each of said defendants, Lee M. Ford, Walter W. Phillips, John M. Wheeler, D.A. McKinnon and Scott V. Hart knew, and the defendants Fred M. Brown and John Doe knew, or in the exercise of reasonable care and diligence should have known, that by reason of the application of said oil to the surface of said highway as aforesaid, said highway was exceedingly slippery and dangerous for use when wet so that vehicles traveling over the same in wet weather might skid from said highway and overturn, causing injury to the occupants thereof."
These allegations were followed by a further allegation that *Page 84 the same defendants failed to place warning signs upon this highway. The allegations are sufficient to charge misfeasance and, in my opinion, are sufficient to state a cause of action against the individual members of the board.
Discussion of the doctrine of respondeat superior has no proper place at this stage of the case. Consideration of that question now is premature.
The allegations are that the members of the board themselves performed the acts of misfeasance. If the proof should show that the named defendants did not perform the acts complained of and did not direct or countenance the tortious acts (see Lowe v. Storozyszyn, 183 Okla. 471, 83 P.2d 170), then it will be time enough to consider the doctrine of respondeat superior.
So far as the sufficiency of the complaint is concerned, we must accept the allegations which are well pleaded as true. In other words, I do not say that the members of the board are in fact liable but only that if the allegations are true there is liability. I think the complaint states facts sufficient to constitute a cause of action against the individuals named. This conclusion works no hardship on the members individually because the legislature apparently contemplated liability in such a case and made provision for an official bond. Sec. 1783, R.C. If there is no liability for misfeasance of the officers then there would seem to be little if any reason for the requirement of an official bond conditioned "for the faithful performance of his duties" as provided in Sec. 1783, R.C.
I think the complaint states facts sufficient to constitute a cause of action against the members of the board individually and against the sureties on their official bonds.